Downs v. River City Group LLC et al

Filing 204

ORDER granting 197 / 198 Motion for Stay of Discovery. If motions for summary judgment filed by Defendants are denied, then such Defendant will have 21 days to submit response to Plaintiff's motions to compel 188 and 191 . If under this order a responsive memorandum is required, prior to filing memorandum the parties shall first "meet and confer". Signed by Magistrate Judge William G. Cobb on 5/21/13. (Copies have been distributed pursuant to the NEF - JC)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 LINDA DOWNS, ) ) Plaintiff, ) ) vs. ) ) RIVER CITY GROUP, LLC, et al., ) ) Defendant(s). ) ______________________________________) 3:11-cv-00885-LRH-WGC ORDER 14 15 I. BACKGROUND 16 Before the court are Defendant Wells Fargo Bank’s Motion for Stay of Plaintiff’s Discovery 17 Motions (Doc. # 197) and Request for Expedited Relief on Order Shortening Time (Doc. # 198). 18 Defendant sought to stay briefing on Plaintiff’s motion to compel further discovery (Doc. # 191). 19 Defendant Wells Fargo’s motion also referenced Plaintiff’s motion to compel further discovery from 20 Defendant Minnesota Life. (Doc. # 188.) The purpose of Defendant’s motion is stated as seeking a stay 21 on “briefing argument and decision on Downs’ [discovery] motions until after the court decides the 22 pending summary judgment motions.” (Doc. # 197 at 2.) Defendant Minnesota Life joined in the Wells 23 Fargo motion. (Doc. # 200.) 24 In response to Defendant’s Request for Expedited Briefing, and good cause appearing, the court 25 stated that it would conduct a status conference on Wells Fargo’s motions (Docs. # 197 and # 198) on 26 May 16, 2013, at 10:30 a.m. The deadline for filing responses to Plaintiff’s motions to compel (Docs. 27 # 188 and # 191) was stayed until after completion of the status conference at which time new deadlines, 28 if necessary, would be established. Plaintiff was directed to file a response to Defendants’ motions for 1 stay of Plaintiff’s discovery motions on or before May 15, 2013, which Plaintiff did in Doc. # 201. 2 Counsel submitted an affidavit in support of his clients’ oppositions to the motion to stay. (Doc. # 202). 3 The Court conducted a hearing and received arguments of counsel at a status conference on May 16, 4 2013. Present for Plaintiff was her attorney Adam McMillen, Esq. Present for Defendant Wells Fargo 5 was its attorney Ariel Stern, Esq. Counsel for Minnesota Life, Todd Erb, Esq., participated by telephone. 6 II. ANALYSIS 7 The court noted that Plaintiff’s motion to compel against Minnesota Life was filed on April 25, 8 2013, and that Plaintiff’s motion against Wells Fargo was filed on April 29, 2013 (Docs. # 188 and 9 # 191). However, the discovery deadline in this case expired on February 8, 2013. (Doc. 82.) Perhaps 10 more importantly, it is noted that all parties, Plaintiff included, filed motions for summary judgment in 11 this case: (Plaintiff, Doc. # 157, actually a motion for partial summary judgment, 3/11/13; Defendant 12 Minnesota Life, Doc. # 155, 3/8/13; Defendant Wells Fargo, Doc. # 154, 3/8/13). Briefing on these 13 motions was completed on April 11, 2013. No party, most importantly the Plaintiff, asserted that 14 resolution of the motions should be delayed under Fed. R. Civ. P. 56(d) until after additional discovery 15 indispensable to the case and important to the motions for summary judgment was completed. While this 16 Rule might not have afforded any assistance to Plaintiff on her partial motion for summary judgment 17 because 56(d) only provides relief to a non-movant, if Plaintiff thought this discovery was relevant to 18 the issues presented by the motions of the Defendants, Plaintiff could have made an argument to the 19 court which would have delayed consideration of the motions: 20 Rule 56(d) provides in pertinent part as follows: 21 If a nonmovant shows by affidavit or declaration that, for specific 22 reasons, it cannot present facts essential to justify its opposition, the court 23 may 24 (1) defer considering the motion, or deny it; 25 (2) allow time to obtain affidavits or declarations or to take discovery; or 26 (3) issue any other appropriate order. 27 In this matter, the Plaintiff in opposing the Defendants’ motions did not avail herself of this 28 provision of Rule 56. Thus, the court fails to understand how the discovery Plaintiff wants to now 2 1 compel from Defendants can have any real relevancy to this case if this discovery was so unimportant 2 that Plaintiff did not feel a need for it to be used in opposing the motions for summary judgment. 3 In footnote 1 to Plaintiff’s response (Doc. # 201 at 2), Plaintiff states that while she believes the 4 facts provided in her opposition to Defendants’ motion were sufficient to show material facts are in 5 dispute such that summary judgment should be denied, Plaintiff also stated that she would “supplement 6 her oppositions according to the information received in response to the pending motion to compel... .” 7 The court would assume that if the information sought in these motions to compel had any substantive 8 validity, the Plaintiff would have sought the 56(d) extension to supplement her oppositions, but she did 9 not do so. 10 The court cannot discern the utility in the briefing by the parties and consideration by the court 11 of a motion to compel which might become moot if District Judge Larry Hicks grants Defendants’ 12 motions. Plaintiff was unable to present any compelling argument to support her position that the court 13 should still proceed to hear and possibly decide a motion to compel which may become totally irrelevant. 14 The case Plaintiff cites in support of her position, O-Grady-Sullivan v State of Nevada, 2:11-cv- 15 00839-MMD-CWH, 2012 WL 3012434 (D. Nev. 2012), is inapposite. In that decision, Magistrate Judge 16 Hoffman was considering Defendant’s request for a stay of discovery while the district judge addressed 17 the merits of Defendant’s motion to dismiss predicated on immunity grounds. In that matter, the deadline 18 for completion of discovery not been completed, nor had final motions for summary judgment been 19 thereafter submitted to the court. 20 Defendants cite the general rule that absent “unusual circumstances,” discovery motions should 21 be filed before the deadline for completion of discovery expires. Gault v Nabisco Biscuit Co., 184 F.R.D. 22 620, 622 (D. Nev. 1999). Although not denying Plaintiff’s motions to compel, based on the arguments 23 and memoranda before the court at this time, the court does not find any “unusual circumstances” in the 24 present case which might justify consideration of a motion to compel at this stage. 25 Similarly in the Gault case, in denying the untimely motion to compel, Judge Johnston also noted 26 that the movant in that case, in opposing a motion for summary judgment, did not seek the court to delay 27 consideration of the motion while Plaintiff completed discovery, citing Rule 56(f) (now 56(d)). As 28 herein, the plaintiff in Gault represented to the court that “he was able to fully and substantively oppose 3 1 Nabisco’s motion for summary judgment without resorting to Rule 56(f).” 184 F.R.D. at 622. This is 2 what Plaintiff stated relative to her opposition to Defendants’ motions for summary judgment. (Doc. 3 # 201 at 2; n.1.) 4 The court is not, however, as counsel for Wells Fargo requested, denying and/or striking 5 Plaintiff’s motions to compel in their entirety; it is just that the court believes that consideration of a 6 motion to compel filed after the deadline for completion of discovery while dispositive motions are 7 pending runs counter to principles of judicial economy. If Judge Hicks grants Defendants’ motions for 8 summary judgment as to either or both parties, as noted above, obviously the motion to compel as to that 9 party becomes moot. If, on the other hand, Judge Hicks denies Defendants’ motions, the court will direct 10 the parties to complete briefing on the merits of Plaintiff’s motions to compel, to include, however, a 11 discussion of whether Plaintiff’s motions were timely filed. 12 III. CONCLUSION 13 The motion for stay of discovery of Defendant Wells Fargo (Doc. # 198), as joined in by 14 Defendant Minnesota Life (Doc. # 200), is GRANTED. If the motions for summary judgment filed by 15 Defendants are denied, then such Defendant will have twenty-one (21) days thereafter to submit a 16 response to Plaintiff’s motions to compel (Docs. # 188 and # 191). If under this order a responsive 17 memorandum is required, prior to filing a memorandum the parties shall first “meet and confer” to 18 attempt to resolve any lingering and outstanding discovery dispute(s). 19 20 IT IS SO ORDERED. 21 DATED: May 21, 2013. 22 23 _____________________________________ WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 4

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